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10/27/89 the People of the State of v. Mozell Brown

October 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

MOZELL BROWN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

546 N.E.2d 95, 190 Ill. App. 3d 511, 137 Ill. Dec. 471 1989.IL.1707

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. UNVERZAGT, P.J., and REINHARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

The State appeals from an order of the circuit court which suppressed evidence seized from the person of defendant, Mozell Brown, in a search conducted after defendant was stopped for traffic offenses. The State contends that the arresting officer was justified in stopping defendant's vehicle for traffic violations and that the search was lawful as it was provoked by defendant's furtive movements. We affirm.

State Trooper Jeff Patterson testified at the hearing of defendant's motion to suppress evidence that on May 12, 1988, at 11 p.m., he observed defendant driving an automobile west on Interstate 290 in Du Page County and paced defendant's vehicle at 85 miles per hour in a 55-miles-per-hour speed zone. The vehicle began to exit the highway, without signaling, then suddenly returned to it, narrowly missing the officer's patrol car. Patterson activated his Mars light and siren, and defendant pulled over and stopped in an area along the highway which had lights on each side. As the officer approached the vehicle, he saw defendant was behind the steering wheel and another person was in the front passenger seat. Defendant reached up toward the dashboard with his right hand and then down to the floor on the passenger's side. The officer did not see any object in defendant's hand.

Officer Patterson further testified that defendant remained seated in the car with the window rolled down. The officer advised defendant why he had stopped him, and defendant responded, "Yes, I was speeding." The officer requested identification, and defendant produced his driver's license, which the officer examined, then told defendant to step out of the car. The passenger remained in the front seat.

Outside of the car, the officer directed defendant to turn and face the vehicle and conducted a pat-down search of his body, outside of his clothes. He felt a hard object in the front pocket of defendant's jacket and, at that time, defendant turned and moved to put his hand in the pocket. The officer pushed defendant back against the car and directed him to place his hands upon it, but defendant again reached for his jacket pocket. The officer thereupon drew his revolver, pointed it at defendant and called on his hand radio for assistance. He then grabbed defendant by the shoulder and, at gun point, walked him back to the police car and put defendant over the hood. Defendant's hands were handcuffed behind his back, and the officer removed the contents of his pocket; he then put defendant down on the grass. In the pocket, the officer found a set of keys, pair of sunglasses, matches and two rolled cigarettes. Other officers arrived, and a search of the car revealed a radar detector on the floor by the passenger's seat.

When asked whether he had observed anything unusual about defendant prior to conducting the pat-down search, the officer referred only to the movement defendant made with his hand from the car dash to the floor when he was first stopped for the traffic offenses. The officer stated he saw nothing in defendant's hand at that time.

As relevant to our inquiry, defendant's testimony was essentially parallel to that of the officer except defendant stated that when the officer was searching him and felt a hard object, the officer asked what it was and defendant started to reach into the pocket to remove the sunglasses and wallet he carried there. At that point, the officer drew his weapon and defendant was handcuffed.

Defendant's passenger, Eworth Dickerson, testified that defendant cooperated with the officer and that at the time they were pulled over, defendant moved a radar detector from the dashboard to the floor of the car.

Officer Patterson charged defendant with speeding, improper lane usage, unlawful possession of a controlled substance and possession of cannabis. The trial court found that the officer had no lawful basis to search defendant and suppressed the evidence seized from his person.

There is no question in this case that Officer Patterson had a basis for the initial stop of the vehicle for traffic offenses, as an officer may briefly detain an individual where there are articulable facts that there is a substantial possibility that an individual has committed, is committing, or is about to commit a criminal offense. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) At issue is whether defendant's ...


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